Study On The Judicial Cognizance Standard Of "Assault" In Special Defense

"Assault" is one of the causes and conditions of special defense,and it is the basic conceptual unit in the reasoning process of judicial application of special defense system.The understanding and determination of "assault" will directly affect the establishment of special defense,and its importance is needless to say.However,scholars have different opinions on how to understand and identify the "perpetrator",coupled with the long-term absence of legislative and judicial interpretation,which leads to the confusion of judicial identification.At the same time,because of the lack of unified standards,the practitioners tend to be too cautious in their identification,and to a certain extent,the actual operation of the special defense system is far away from its original legislative intention.In order to solve this problem,this paper mainly uses the method of multi sample case analysis,in-depth judicial practice to extract the actual judicial identification standard of "assault" and make in-depth reflection and analysis,and strive to make a certain degree of improvement,in order to be beneficial to judicial practice.In addition to the introduction and conclusion,it is divided into three parts.The first part,mainly combined with 121 sample cases to explore the operation of "assault" in the trial practice.It is found that its judicial application is relatively confused,and then it refines the actual judicial identification standard of "assault",which mainly includes objective result standard,tool use standard and standard judgment standard.In the second part,the author reviews and rethinks the standard of the actual judicial determination,and traces the theoretical source to grasp the root of the problem.It is found that the strong fuzziness of the actual standard leads to its poor operability,and some of the standard judgment paths are reversed,which may be too limited to narrow the scope of the establishment of "assault" and improperly raise the threshold of its identification,so it is difficult to deal with complex practice.It is urgent to summarize a more scientific and reasonable comprehensive standard.In the third part,based on the analysis of the advantages and disadvantages of the mainstream academic interpretation,and the profound reflection on the standard of judicial recognition,in the critical inheritance of academic theory,and combined with the practical needs of judicial practice and the guiding documents of practical departments,the author makes targeted improvement and further refinement on the standard of judicial recognition,and obtains the comprehensive standard theory.From the essence of "assault",the theory holds that "assault" is a kind of serious violence that may lead to serious injury or death,and the criminal intent is not clear and the specific charge can not be determined.At the same time,the standard of using tools(the theory of using lethal weapons)and the standard of objective results(the theory of serious injury and death)are introduced to make a comprehensive judgment,with the possible results of violence as the core factor,and combined with the standard of using tools.The theory relaxes the standard of "assault" moderately and reasonably,which accords with the original intention of the establishment of special defense;At the same time,it has certain clarity and operability,which can promote the unity of judicial determination of "assault";Finally,it is basically self consistent in internal logic and can be reasonably applied in judicial practice.